Mst. ZAINAB BIBI vs JEHANZEB and another
The petitioner sought post-arrest bail in a criminal case registered under Sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860 arising from an un-witnessed murder occurrence. The core legal question was whether the petitioner, who was charged with abetment after an unexplained delay of six days and whose co-accused with similar roles had already been released on bail, was entitled to the concession of bail on the rule of consistency and under the scope of further inquiry. The Peshawar High Court held that since the occurrence was un-witnessed, the belated involvement of the petitioner remained unexplained, and co-accused with similar roles had already been granted bail, the petitioner made out a case for further inquiry. The petition was accordingly allowed, granting bail to the petitioner subject to furnishing surety bonds. The key principle laid down is that where co-accused facing similar allegations are granted bail and the prosecution case suffers from unexplained delay and lacunas concerning an un-witnessed crime, the rule of consistency applies and entitles the remaining accused to bail pending trial.
- Is an accused entitled to post-arrest bail on the rule of consistency when co-accused with similar roles have already been released on bail?
- Does an unexplained delay in charging an accused in an un-witnessed murder case make out a case for further inquiry under criminal jurisprudence?
- Can an accused charged with abetment be granted bail when the prosecution case suffers from material lacunas and contradictions?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
Petitioner seeks bail in case FIR No, 1001 dated 12.11.2010 for offence under Sections 302/109/148/149 PPC registered at Police Station, Katlang District Mardan.
2. The contents of FIR reveal that on the eventful day Khial Dad reported the matter to the police to the effect that he married twice and at the relevant time he was present in his house with his two wives when friend of his wife, namely, Mst. Shaheen Akhtar rang on his cellular phone, which was given to his said wife for conversation. On this, his second wife, namely, Mst. Zainat, exchanged hot words with the former that she had given the contact number of the husband to your friend over which Mst. Shaheen Akhtar annoyed, took a pistol lying in the house and fired upon her person With which she sustained injury. She was rushed to the hospital but on the way succumbed to the injuries. Subsequently, on 11.11.2010, the complainant in his statement recorded u/S. 164 Cr.P.C. before the Magistrate charged his son-in-law, namely, Khial Dad for commission of the offence and the petitioner alongwith co-accused for abetment, hence the case was registered.
3. Learned counsel for petitioner contended that the petitioner is entitled to the concession of bail on the grounds of rule of consistency as the co-accused have been released on bail by the Court of competent jurisdiction; that there are two versions in the prosecution case, one is given in the FIR and the second after six days of the occurrence, which creates doubts in the prosecution and that the petitioner was charged for abetment, which was levelled against her after at a belated stage of six days of the occurrence. In support of his arguments, the learned counsel relied on 2009 SCM R 786 and 2011 SCM R 710.
4. On 1.8.2011, the complainant, namely, Jehanzeb put up appearance before the Deputy Registrar of this Court and stated that he has engaged Mr. Sikandar Khan, advocate who will file his power of attorney on the next date, hence the case was placed before the Court for disposal on 10.8.2011. On the said date, he again appeared before the Court and stated that his counsel was out of station and requested for adjournment, hence the matter was adjourned. Today again when the case was called, he put up appearance and stated that his counsel is sick, thus, requested for adjournment, which was not acceded to and the matter was heard without his representation due to his delaying tactics.
5. As against that learned counsel representing the State contended that the petitioner was denied bail due to her active role of abetment by the lower Court, therefore, at this stage she is not entitled to the grant of bail.
6. Admittedly, the occurrence is an un-witnessed one as no witness has been shown by the complainant in support of his alleged version. The petitioner has been involved in the case after six days of the occurrence, therefore, the delay caused has not been explained reasonably. The co- accused involved in the matter with same and similar role have been granted bail by learned Additional Sessions Judge-VIII, Mardan through separate orders dated 22.4.2011 and 10.5.2011, respectively, therefore, on the principle of rule of consistency the petitioner is also entitled to the same treatment. All these lacunas in the prosecution will be answered by the prosecution at the trial but till that stages comes, the petitioner cannot be kept behind the bars for indefinite period, therefore, the petitioner has made out a case for further inquiry.
As a sequel to the above, the petition in hand is allowed and the petitioner is granted bail in the sum of Rs,200,000/- (Rupees two lacs) with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.